The National Grange of the Order of Patrons of Husbandry v. California State Grange

Filing 163

ORDER signed by Senior Judge William B. Shubb on 10/12/2016 DENYING 155 Defendant's Request to Stay 154 Order Awarding Attorney's Fees. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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THE NATIONAL GRANGE OF THE
ORDER OF PATRONS OF
HUSBANDARY, a District of
Columbia nonprofit
corporation,

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CIV. NO. 2:14-676 WBS AC
ORDER RE: REQUEST TO STAY ORDER
AWARDING ATTORNEY’S FEES

Plaintiff,
v.
CALIFORNIA STATE GRANGE
d/b/a/ “CSG,” a California
corporation,

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Defendant.

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----oo0oo----

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On July 14, 2015, the court granted summary judgment in

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favor of plaintiff the National Grange’s claims for trademark

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infringement and false designation of origin under the Lanham

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Act. (July 14, 2015 Order at 19-20 (Docket No. 60).)

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enjoined defendant “from using marks containing the word

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‘Grange.’”

The court

(Sept. 30, 2015 Order at 6 (Docket No. 85).)

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On April 20, 2016, the court found defendant in

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“deliberate and willful” violation of the court’s injunction on

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the word “Grange” and held that plaintiff was entitled to

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attorney’s fees under 15 U.S.C. § 1117(a) (“April 20 Order”).

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(Apr. 20, 2016 Order at 34, 36 (Docket No. 138).)

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awarded plaintiff $144,715.70 in fees on September 12 (“September

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12 Order”).

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The court

(Sept. 12, 2016 Order at 21 (Docket No. 154).)

On September 29, defendant filed a declaration stating
that it is unable to pay the fees and requesting the court to

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stay enforcement of the September 12 Order.

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McFarland (“McFarland Decl.”) ¶ 12 (Docket No. 155).)

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to defendant, “[m]ost of the funds held by the Guild are subject

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to a preliminary injunction issued in . . . [the underlying]

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State Court Action.”

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other sources of income are held in escrow subject to plaintiff’s

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consent, subject to other injunction, or constitute necessary

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operating costs.

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statements showing that the only bank accounts it currently has

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access to total $814.27 and $1,535.71 respectively.

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E.)

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injunction total $2,427,436.15 and $105,385.49.

(Id. ¶ 4.)

(Id. ¶¶ 6-8.)

(Decl. of Robert
According

Defendant alleges that its

Defendant attaches bank

(Id. Exs. C-

The bank accounts subject to state court preliminary

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(Id.)

On October 4, plaintiff filed a short statement

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opposing defendant’s request and alleging that “Defendant does

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have funds available that were not disclosed in Mr. McFarland’s

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Declaration.”

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clerk of court issued a writ of execution on the September 12

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Order.

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(Pl.’s Resp. (Docket No. 157).)

The next day, the

(Docket No. 159.)
On October 10, defendant appealed the September 12 and
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April 20 Orders to the Ninth Circuit.

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No. 160).)

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(Notice of Appeal (Docket

Defendant’s request for stay is styled as a

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declaration.

The declaration cites no law.

Because defendant

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has appealed the April 20 and September 12 Orders to the Ninth

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Circuit, the standard set forth by the U.S. Supreme Court in Nken

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v. Holder, 556 U.S. 418 (2009) is appropriate here.

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Under Nken, a court considers the following factors in

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deciding whether to grant a stay pending an appeal: “(1) whether

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the stay applicant has made a strong showing that he is likely to

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succeed on the merits; (2) whether the applicant will be

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irreparably injured absent a stay; (3) whether issuance of the

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stay will substantially injure the other parties interested in

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the proceeding; and (4) where the public interest lies.”

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556 U.S. at 426.

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critical.

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merits be ‘better than negligible.’”

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applicant [must make] a strong showing that he is likely to

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succeed on the merits.”

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(9th Cir. 2012).

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of irreparable injury’ . . . fails to satisfy the second factor.”

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Nken, 556 U.S. at 434–35.

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Nken,

“The first two factors . . . are the most

It is not enough that the chance of success on the
Id. at 434.

“[T]he stay

Lair v. Bullock, 697 F.3d 1200, 1203

Additionally, merely “showing some ‘possibility

Defendant has not attempted to argue that it will

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succeed in appealing the April 20 or September 20 Orders.

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request is based only on its alleged inability to pay.

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not demonstrated irreparable injury either.

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defendant does not pay and plaintiff brings a second contempt

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motion, defendant will be free to argue inability to pay as a
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Its

It has

In the event

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defense.

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(9th Cir. 1999) (“A party's inability to comply with a judicial

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order constitutes a defense to a charge of civil contempt.”);

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Cutting v. Van Fleet, 252 F. 100, 102 (9th Cir. 1918) (“[I]n

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cases of civil contempt for failure to comply with an order to

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pay money, the defendant may show in defense that he is

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financially unable to comply.”).

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See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239

It is not clear whether issuing a stay would
substantially injure plaintiff or whether the public has an

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interest in issuing a stay.

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satisfied the two “most critical” factors of Nken, a stay is

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inappropriate here.

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However, because defendant has not

IT IS THEREFORE ORDERED that defendant’s request to

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stay the court’s September 12, 2016 Order (Docket No. 154) be,

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and the same hereby is, DENIED.

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Dated:

October 12, 2016

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